Kim (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 500 (Student) visa. The dispute centred on whether the applicant met the criteria for this visa, specifically concerning their enrolment in a course of study. The Tribunal, constituted by Member Peter Haag, was tasked with reviewing a previous decision that had affirmed the refusal of the visa.

The primary legal issue before the Tribunal was whether the applicant was currently enrolled in a course of study, as required by clause 500.211 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an applicant must be enrolled in a "full-time registered course" at the time of the decision. A "registered course" is defined by regulation 1.03 as one provided by an institution registered under the Education Services for Overseas Students Act 2000.

The Tribunal's reasoning focused on the lack of evidence demonstrating the applicant's current enrolment. After reviewing the Department's file and the Tribunal's own file, no documentation, such as a Confirmation of Enrolment, was found to establish that the applicant was enrolled in a course of study. Consequently, the Tribunal concluded that clause 500.211 was not satisfied. As this was a primary criterion for the visa and the applicant did not claim to meet alternative criteria or the criteria for a Subclass 590 (Student Guardian) visa, the Tribunal found that the overall criteria for the grant of a Subclass 500 visa were not met.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.